Soto v. McHugh

• Decision Date: 20 January 2016
• Docket Number: CIVIL NO. 13-1507 (GAG)
• Citation: 158 F.Supp.3d 34
• Parties: Osiris Soto, Plaintiff, v. John M. McHugh, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

158 F.Supp.3d 34

Osiris Soto, Plaintiff,

v.John M. McHugh, et al., Defendants.

CIVIL NO. 13-1507 (GAG)

United States District Court, D. Puerto Rico.

Signed January 20, 2016

Myrmarie Laborde-Vega, Manuel Porro-Vizcarra, Manuel Porro Vizcarra Law Offices, San Juan, PR, for Plaintiff.

Lisa E. Bhatia-Gautier, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPI, United States District Judge

Osiris Soto (“Plaintiff”) brings this action against John H. McHugh, the Department of the Army, and ABC Insurance Company, Inc. (“Defendants”), alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.

(See Docket No. 13.)

In a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

, Defendants argue certain claims should be dismissed for failure to exhaust administrative remedies, and that Plaintiff's claim for punitive damages is barred by the doctrine of sovereign immunity. (Docket No. 38 at 1.)

Additionally, Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56

, arguing that Plaintiff does not offer sufficient evidence to support her claims for discrimination based on sexual harassment and retaliation. Id. Plaintiff opposed Defendants' motions. (Docket No. 45.) Defendants filed a reply and Plaintiff sur-replied. (Docket Nos. 51; 57.)

In her complaint, Plaintiff contends that she was sexually harassed by three different co-workers and subjected to continuous retaliation by senior management at Fort Buchanan. (See Docket No. 13.) Related to sexual harassment, Plaintiff alleges: (1) sexual harassment in 2008 by Manuel Sariego (“Sariego”), a co-worker from the Directorate of Human Resources (“DHR”); (2) sexual harassment in 2009 by Luis Comas (“Comas”), a supervisory human resources specialist at DHR, and (3) sexual harassment in August 2013 by a sexual harassment training instructor. Id. As to her retaliation claims, Plaintiff alleges: (1) retaliation by her supervisor Maria Morales (“Morales”) after filing an EEO complaint for Sariego's sexual harassment in 2009; (2) retaliatory transfer from the DHR to the Religious Support Office (“RSO”) in the wake of her sexual harassment complaint against Comas in 2009; (3) non-selection for the Managerial Support Technician G6/G7 position at the DHR; and (4) a two-year delay in giving Plaintiff an annual appraisal due in 2011. Id.

After reviewing the parties' submissions and pertinent law, the Court hereby GRANTS in part and DENIES in part Defendants' Motion to Dismiss at Docket Nos. 38, 40; and DENIES Defendants' Motion for Summary Judgment at Docket Nos. 38, 40.

I. Sham Affidavit

As a threshold matter, the Court addresses Defendants' contention that some of Plaintiff's factual allegations should be stricken because they contradict or are materially different than Plaintiff's previous statements during the administrative hearings. (Docket No. 54 at 1-2.) Defendants contend Plaintiff is attempting to “create[ ] a genuine dispute of fact for purposes of summary judgment by disagreeing with herself.” Id. at 1 (citing Malave–Torres v. Cusido , 919 F.Supp.2d 198, 203 (D.P.R.2013)

; Rivera–Garcia v. Sprint PCS Caribe , 841 F.Supp.2d 538, 546 (D.P.R.2012) ). Defendants urge the Court to strike the following factual statements from the record: Docket No. 43 at 17-21 ¶¶ 8, 9, 14, 24, and 27. These factual statements all originate from Plaintiff's deposition on December 8, 2014. (See Docket No. 43-1.)¹

Defendants essentially argue that Plaintiff's 2014 deposition is similar to a “sham affidavit” being introduced solely in an effort to create a material issue of fact. (Docket No. 54 at 1-2.) However, the Court disagrees that any of these statements contradict Plaintiff's prior testimony, and holds instead they serve to provide more details and further explain Plaintiff's statements from her administrative hearings. Malave , 919 F.Supp.2d at 203

(citing Nelson v. City of Davis , 571 F.3d 924, 928 (9th Cir.2009) ) (“[t]his doctrine excludes conflicting testimony given by an interested party, but does not bar a party from ‘elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition.’ ”). Viewing the facts in the light most favorable to the non-moving party, in this case, the Plaintiff, the Court finds that the statements are properly supported by the record. Thus, the challenged statements shall not be stricken and are admissible as evidence. At trial, Defendants are welcomed to use any statements they deem inconsistent as impeaching material. See Fed. R. Evid. 613. However, at this stage, there are no grounds to exclude said statements.

II. Relevant Factual Background

The Court states the facts in the light most favorable to Plaintiff. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

(consistent with the motion for summary judgment standard); see also Parker v. Hurley , 514 F.3d 87, 90 (1st Cir.2008) (consistent with the motion to dismiss standard). Additionally, in accordance with Local Rule 56

, the Court credits only facts properly supported by accurate record citations.² See Local Rule 56(e).

Plaintiff is a civilian employee of the Army at Fort Buchanan (“Buchanan”) Military Base in Puerto Rico who claims she has been subjected to sexual harassment by three different coworkers and subsequent retaliation by senior management over the course of 5 years. (See Docket No. 13.) At the time Plaintiff Osiris Soto filed this complaint, she was employed as a Management Support Technician at the DHR at Fort Buchanan. (Docket Nos. 39 ¶ 1; 43 at 1 ¶ 1.) Plaintiff had been employed by the organization for approximately eleven years, and held the Management Support Technician position for the last two years under the supervision of Maria Morales, the Director of the DHR. Id. Plaintiff never received any warnings or negative performance reviews while working for the DHR. (Docket Nos. 43 at 53 ¶ 225; 54 ¶ 225.)

Given the complicated history underlying Plaintiff's sexual harassment and retaliation claims, and the importance of the sequence of events to evaluating her claim, the Court has divided the account of the relevant facts into specific time periods based on her allegations.

A. Sexual Harassment Claim against Manuel Sariego

Plaintiff's first alleged harasser was Manuel Sariego, the Casualty Assistant Officer at the DHR. (See Docket No. 43 at 16-22.) Like Plaintiff, Sariego's supervisor was also Maria Morales. (Docket Nos. 43 at 30 ¶ 75; 54 ¶ 75.) Starting in 2008, Plaintiff described several instances in which Sariego allegedly harassed her by inviting her out to dinner, asking her to go to a hotel with him, and inquiring about her relationship status and what she liked about men. (See Docket Nos. 43 at 17 ¶¶ 6-8; 54 ¶¶ 6-8.) Plaintiff continually declined Sariego's advances. (See Docket Nos. 43 at 17 ¶¶ 6-8; 54 ¶¶ 6-8.)

Plaintiff also claims Sariego created a hostile work environment by sending her inappropriate e-mails, visiting her constantly and often using phrases with inappropriate sexual connotation. (Docket Nos. 43 at 18 ¶¶ 13-14; 54 ¶¶ 13-14.) Plaintiff provided several e-mails in which Sariego referred to her as “nena,”³ stated that the web portal was “orgasmic” and included explicit sexually suggestive pictures suggesting that in order to get promoted, a female had to give good “blow jobs.” (Docket Nos. 43 at 18-20 ¶¶ 15, 16, 22; 54 ¶¶ 15, 16, 22.) Plaintiff alleges she told Morales about Sariego's e-mails and behavior, but Morales was “not receptive” to Plaintiff's complaints. (Docket No. 43 at 21 ¶ 24.) Around August 2008, Plaintiff decided to create a separate folder in her e-mail where all non-work related e-mails from Sariego would be sent to. Id. at 21 ¶¶ 24, 26. Sariego sent Plaintiff a total of 448 e-mails. (Docket Nos. 43 at 22 ¶ 29; 54 ¶ 29.) Master Sergeant Russell, a Non-Commissioned Officer in charge of DHR, and others also received inappropriate e-mails from Sariego. (Docket Nos. 43 at 19 ¶¶ 17, 18; 54 ¶¶ 17, 18.) Plaintiff complained to both Russell and Luis Comas, a Supervisory Human Resources Specialist at DHR, about these e-mails. (Docket Nos. 43 at 19 ¶¶ 17, 18; 54 ¶¶ 17, 18.)

In November of 2008, Plaintiff claims Soto and Sariego were at Plaintiff's office when Morales entered, and Plaintiff informed Morales that she was unhappy with Sariego's visits, that he had called her a “gamberra”⁴ and that she did not want to talk about non-work related things with him. (Docket No. 43 at 17 ¶ 9.) It is uncontested that Morales told Soto that she was the one who had to deal with “several sexual gossips” and that it looked like Plaintiff and Sariego had a mishap marriage.⁵ (Docket Nos. 39 ¶ 4; 43 ¶ 9, 12; 54 ¶ 9, 11.) Plaintiff contends this was the first time Morales learned of Sariego's sexual harassment of Plaintiff, and yet, failed to take appropriate action. (Docket No. 43 at 18 ¶ 10.) Morales instead claims to have understood Plaintiff's “complaint” as one that was work related, since Morales perceived Plaintiff and Sariego's relationship as one where they joked and teased each other often. (Docket No. 39 ¶ 10.)

B. EEO Complaint # 1—Sexual Harassment by Manuel Sariego

On May 5, 2009, Plaintiff was blind copied on an e-mail from Sariego, which was especially alarming to her because in it Sariego stated that Comas had prior sexual relationships with two other female coworkers, and asked if Plaintiff had “fucked” Comas too. (Docket Nos. 43 at 22 ¶ 32; 43 ¶ 32.) After Plaintiff received this e-mail, she called Russell and translated it to him. (Docket Nos. 43 at 23 ¶ 35; 54 ¶ 35.) She informed Russell she would be heading to the EEO Office to report Sariego. (Docket Nos. 43 at 23 ¶ 35; 54 ¶ 35.) Plaintiff then went to Morales' office to tell her she was planning to file a complaint with the EEO, and Morales acknowledged that she had...